Here.
DOJ Taskforce on Native Children and Violence Meets in Alaska
Here.
Alaska Natives
Briefs in Phillip v. State of Alaska — Yup’ik Fishers Case
Here:
Victoria Sweet posted the Atlantic Monthly profile of this case here.
“When Global Warming Kills Your God,” 23 Yup’ik Men Defying a Fishing Ban for Their Traditional Beliefs
This well-written article (link) paints a powerful picture about the devastating impact that a warming climate is having on Alaska Natives. Cited is the fact that an estimated 86% of Alaska Native villages will require relocation over the next 50 years because of climate changes.
In addition, the article looks at the case of 23 tribal members who were punished for defying a fishing ban. Briefs available here. Their case will be heard in the Alaska Court of Appeals, possibly sometime this summer. According to the article, “the fishermen’s civil disobedience has been framed as a First Amendment issue: The Yup’ik believe they have an obligation to continue their ancestral traditions.” In an amicus brief, the ACLU stated
A Yup’ik fisherman who is a sincere believer in his religious role as a steward of nature, believes that he must fulfill his prescribed role to maintain this ‘collaborative reciprocity’ between hunter and game. Completely barring him from the salmon fishery thwarts the practice of a real religious belief. Under Yup’ik religious belief, this cycle of interplay between humans and animals helped perpetuate the seasons; without the maintaining of that balance, a new year will not follow the old one.
While the trial judge appeared sympathetic, he still felt the state had sufficient reason for imposing the ban. It will be interesting to see how the court of appeals deals with this defense, particularly under current changing conditions.
There, [in the Court of Appeals] state-appointed judges will grapple with the same question the court faced in 1979, when an indigenous hunter named Carlos Frank was charged with illegally transporting a newly slain moose. Frank argued that he had needed the animal for a religious ceremony. Two lower courts found him guilty, but the Alaska Supreme Court reversed the verdict, calling moose meat “the sacramental equivalent to the wine and wafer in Christianity.”
This, in the end, is what’s at stake for the Yup’ik fishermen. Their villages may be swallowed up by the sea, but the people themselves won’t float away. They’ll relocate en masse or drift into the urban diaspora of Anchorage. But if they stop fishing king salmon, the Yup’ik believe they’ll lose something far more fundamental than their homes.
H/T to TH.
Article on the use of banishment in the rural Alaska Native village of Tanana
After the recent shooting deaths of two Alaska state troopers, the village of Tanana has turned to banishment as a way of protecting the community. The use of banishment is very controversial, raising a host of legal questions, but the circumstances of this village demonstrate how few options community members feel that they have under current jurisdictional conditions.
Full article here.
The Tanana Village Council, the Athabascan Indian tribal authority in the village of 250, is taking steps to expel two men whose actions contributed to the homicides and who have threatened other community members, council Chairman Curtis Sommer said.
“This is the only way we have to remove individuals who are — how do we say it? — who are dangerous to members of the community,” Sommer said.
The action is infrequent in Alaska, and when it is used, some question whether a tribal entity has the right to limit access to a community otherwise governed by state law. Those who are banished rarely contest the action publicly, and it isn’t clear if banished residents go on to cause problems in other communities because no one tracks them. . . .
The state can’t afford to pay for law enforcement in small villages like this but they also refuse to let tribes have full authority over law enforcement, beyond an unarmed public safety officer, Kendall-Miller said. State troopers are flown in to deal with violence, but they can sometimes take days to arrive. . . .
Sommer concedes banishment is a “slippery slope.”
“It’s got to be very significant circumstances that would warrant this, either violent assaults or murder,” he said. “At what point do we draw the line on this? I do not know. I do know it’s not going to be used frivolously just to get back at someone.”
The village council will ask the state to enforce banishments. The Alaska Department of Law said it would carefully evaluate a banishment order. Kendall-Miller has seen unofficial support in the past.
“We have seen state police officers that have attempted to accommodate the tribal council’s blue ticket orders by helping to prevent individuals from coming back,” Kendall-Miller said. “It has been an informal arrangement that was done out of necessity.”
“If they do not enforce it, we will enforce it ourselves. We will get a group of men together and go to that person and tell him to leave and to not come back.”
H/T to SW.
News Coverage of ILOC Chairman Troy Eid’s Speech at Tanana Chiefs Conference Convention
Report on the Polar Law Conference and Arctic Circle Conference in Iceland – Long
I just returned from Iceland, where I participated in the 6th annual Polar Law Conference and the inaugural Article Circle Conference. The events drew an impressive array of speakers. It was almost a “who’s who” in Arctic affairs, bringing in heads of state, ambassadors, special envoys, lawyers, scholars, business executives, scientists, activists, students, and other interested people. Coverage of both events can be found online.
Instead of simply reviewing the events, I thought I’d mention a few of the presentations and events that were of particular interest to me and that might be interesting to some of you.
This is the second time I have attended the Polar Law Conference. I was impressed both times with how open the attendees are to discussing the implications of Arctic development on the Indigenous peoples who reside in Arctic regions. In fact, I found myself engaged in fascinating discussions with legal scholars from many locations who do not understand the U.S. domestic legal policies toward tribes (does anyone truly understand this?) as well as what appears to the international community as the United States’ hesitance to apply UNDRIP, join ILO 169 or UNCLOS, or apply international customary law norms in US courts. Even more interesting are the discussions on how Indigenous groups around the world are dealing with issues that face us all such as: access to sacred sites, protection of subsistence rights, violence against women, preservation and protection of cultural knowledge, among other things.
Here are some highlights from presentations made at both conferences:
Timo Koivurova, Director of the Northern Institute for Environmental and Minority Law, referred to the evolving indigenous law regime that is developing internationally and the need for this regime to trickle down to the domestic level to be truly effective.
Antje Neumann, Researcher at the Univ of Akureyri and PhD Candidate at the University Tilburg presented a compelling paper on the role of Indigenous knowledge in environmental protection and how assisting Indigenous groups to preserve traditional knowledge may benefit all nations when working on ways to protect and preserve the environment.
Kári á Rógvi, Member of Parliament, Faroe Islands spoke on the struggles that Faroe Islanders face as a self-governing nation under the sovereign authority of Denmark. The similarities in legal struggles between the Faroe Islands and Tribes in the US were striking, and Kári and I both agreed that we might be able to learn much from each other since the issues we face are quite similar.
Leena Heinämäki, Research Fellow, Northern Institute for Environmental and Minority Law, shared a project she is involved with on reclaiming sacred natural sites of Indigenous Peoples in the Circumpolar Arctic. Researchers from various countries are bringing together the similarities and differences that Indigenous Peoples in all Arctic countries are facing, and trying to created a unity of purpose between these groups.
Mara Kimmel, an Alaskan attorney and PhD Candidate, Central European University, gave a fascinating paper called “Land, Governance and Well-Being – An Alaskan Case Study.” Her PhD thesis will be coming out soon, and I am looking forward to reading about Alaska Native land claims, governance issues, and the link to the well-being of the people. Since my presentation had to do with human security issues for Indigenous communities in Alaska and Canada related to economic development, we found a lot of cross issues between human security and the ability to self-govern effectively.
Aqqaluk Lynge, Chair, Inuit Circumpolar Council spoke about the question of whether Indigenous people in the Arctic will thrive or just survive. He said that he is not yet convinced that the Arctic will become a place of peace. He challenged the international community to focus on honesty, integrity, transparency and accountability in its dealings with Indigenous Peoples.
Edward Itta (Inupiaq), Commissioner, U.S. Arctic Research Commission gave a powerful presentation. He wanted to know how the Inupiaq can participate more meaningful in economic opportunities. Perhaps, as he said, it is time for Indigenous peoples to ponder a challenge to the current status quo. As he also said, the Inupiaq “degree” in the Arctic world is their survival!
Gudmundur Alfredsson, Univ of Akureyri (and influential part of the creation of UNDRIP), chaired the session where Mr. Itta spoke. He pointed out the less-than-stellar human rights and Indigenous rights records that many of the Arctic states have. He said that it might be time for the world to start focusing on the North and these important issues. He also took a moment and had every Indigenous person in the audience raise their hands. While there were numerous hands raised, we were still quite a small minority. He said that maybe next year we can do better.
The conference had many memorable moments, from the moment when the director of Greenpeace confronted President Putin’s Special Envoy about the arrest of the 30 Greenpeace protestors to the Google Maps presentation showing the in-depth mapping of the ocean to the gorgeous northern lights display (thanks to Mother Nature for that). It was worth the time to attend.
It would be great to see a stronger representation of Alaska Natives getting their voices heard at these conferences along with other legal scholars from the U.S. While I understand that many in the U.S. do not find it worthwhile to spend much time on the international scene, and it is often cost prohibitive, I think we have a unique opportunity related to the Arctic. The attention of the world is turning to that region, and right now we have an opportunity to have our voices heard. Further down the line, the policies will be set and we will be stuck trying to change the practices that we disagree with. Right now we may be able to influence them from the start. It’s something to consider.
Tom Bell on the Third Amendment, Property Rights, and the Displacement of Alaska Natives During WWII
Tom Bell has posted his paper “‘Property’ in the Constitution: The View from the Third Amendment“, forthcoming in the William and Mary Bill of Rights Journal.
Here is the abstract:
During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate – land, fixtures attached thereto, and related rights – but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other legal documents, tell us just about everything we need to know about the scope of constitutional property. Case law and commentary do not speak as plainly, however, raising troubling questions about what “Property” means each of the four times it appears in the Constitution. In particular, some authority suggests that the Takings Clause protects personal property less completely than it does real property. The unjust treatment of Aleutian natives during World War II shows the risk of giving constitutional property so peculiar and narrow a definition. This paper describes the troubling inconsistencies that afflict the law of constitutional property and invokes the Third Amendment, that oft-forgotten relic of the American Revolution, to argue for giving “Property” a plain, generous, and consistent meaning throughout Constitution.
Note on Inuits and Climate Change Published in Southeastern Environmental Law Journal
Katherine King’s Note examining differing Inuit perspectives on climate change and the regulatory implications of these differing perspectives has been published. The article is called “Climate change and the Inuit: a melting of actions into a cloudy mess” and can be found at 17 Southeastern Envtl. L.J. 481 (2009).
Huffington Post on Palin and Native Advisor Resignation
From the Huff (H/T TW):
JUNEAU, Alaska — Gov. Sarah Palin’s rural adviser resigned Monday amid criticism of the governor’s record on hiring Alaska Natives.
Rhonda McBride, who is not an Alaska Native, made the announcement in an e-mail to several Native leaders, saying there need to be more Native voices in Palin’s administration.
“I definitely think it would help to have an Alaska Native in this position,” McBride told The Associated Press.
Many Alaska Natives have said they felt neglected when Palin, now the Republican vice presidential nominee, made appointments to her administration, including the rural adviser post.
State Sen. Al Kookesh, a Democrat, said Palin left the position unfilled her first year in office and ignored Native leaders’ suggestions on the selection process.
“We were really disappointed when an Alaska Native wasn’t appointed,” said Kookesh, a Tlingit Indian who held the job in a previous administration.
Natives bristled early in Palin’s administration when she named a white woman to a game board seat held by a Native for more than 25 years. An Athabascan Indian eventually was named to the post after protests.
Relations worsened after Palin didn’t remove a game board chairman who once suggested that Alaska Natives missed a meeting because they were drinking beer, seen as insensitive since the Alaska Native community has high rates of alcohol abuse.
Alaska Natives make up about 20 percent of the population.
Heather Kendall-Miller’s Reponse to Sarah Palin Supporters
From ICT:
Unlike Mr. [Ben Nighthorse] Campbell, who remarks that he is Northern Cheyenne, a former senator, and a leader in the McCain campaign, I am an Athabascan Indian, I have lived in Alaska all my life, and I actually know firsthand what Gov. Sarah Palin has done.
Contrary to the former senator’s remarks, Alaska subsistence hunting and fishing issues are not complicated. As the former senator concedes, however, they are deeply “political.” My point exactly: consistently, Sarah Palin has politicized subsistence and sought to advantage urban hunters and fishers over the rural people who actually live a subsistence way of life. It is a stunning hostility, given that subsistence fishing, as one example, consumes a mere 2 percent of all consumptive uses of fish in our state.
Turtle Talk 
You must be logged in to post a comment.